Some regulatory gaps that negatively influence the effective implementation of Law no. 209/2016 on waste
The first legislative concerns in order to regulate the management of production and household waste in order to reduce them and to reintroduce them maximally into the economic circuit, as well as, in order to prevent environmental pollution, were fixed by the adoption by the Parliament of the Republic of Moldova of Law no. 1347-XIII from 09.10.1997 the basic foundation constituting Law no. 1519/1993 on the protection of the environment [1].
The regulatory domain of Law no. 1347/1997, relates to the relationships that arise in the management of waste formed in the process: valorization of deposits and processing of mineral raw material; manufacturing, transportation and storage of technical articles, consumer goods, energy and energy agents; carrying out construction, agricultural, mining and other works; the provision of services; the consumption of industrial and food products.
Thus, on 10.04.2013, to ensure the execution of priority actions in the field of environmental protection, provided by the Government's Activity Program "European Integration: Freedom, Democracy, Welfare" 2011-2014, and for the purpose of executing the Government's Action Plan for 2012 -2015, approved by Government Decision no. 289 of May 7, 2012, in order to develop the infrastructure and services necessary to adequately protect the environment at global, national and local levels from the effects associated with the management of waste generated by citizens, businesses and institutions, as well as to establish the legal and institutional framework necessary to support the alignment the gradual alignment of the waste management practices of the Republic of Moldova with those of the European Union, by Government Decision no. 248 was approved The waste management strategy in the Republic of Moldova for the years 2013-2027, and respectively, The action plan regarding its implementation [2].
Starting from 23.12.2017, Law no. 1347/1997 on production and household waste is no longer applicable, because it was repealed by the new Law no. 209 of 29.07.2016 on waste [3].
Respectively, Waste management strategy 2013-2027 from the Republic of Moldova, becomes a lapsed act, because it was approved as an implementation mechanism in particular and a Law no. 1347-XIII of October 9, 1997 regarding production and household waste, in addition to other general normative acts.
Or, the new Law no. 209/2016 was adopted by taking over the majority of the regulations from Directive no. 2008/98/EC of the European Parliament and of the Council, which standardizes contemporary waste management practices, totally different from the outdated/obsolete ones of the Law old no. 1347/1997 on production and household waste.
It is remarkable that, on 02.07.2014, by Law no. 112 adopted by the Parliament of the Republic of Moldova, the Association Agreement between the Republic of Moldova, on the one hand, and the European Union and the European Atomic Energy Community and their member states was ratified, on the other hand, according to which our country, in addition to the multiple commitments provided for in the Preamble of the international act, has undertaken to progressively bring its legislation in the relevant sectors closer to that of the EU and to implement it effectively [4].
Respectively, according to a principle from those applicable to legislative activity, according to art. 3 of Law no. 100/2017 regarding normative acts, "The normative act must correspond to the provisions Constitution of the Republic of Moldova, the international treaties to which the Republic of Moldova is a party, the unanimously recognized principles and norms of international law, as well as the legislation of the European Union" [5].
The expired character of The 2013-2027 waste management strategy of the Republic of Moldova it is also noted by the findings of the Court of Accounts of the Republic of Moldova from the Report of the compliance audit associated with the performance audit regarding the management of hazardous and production waste, the additional impact, approved by Decision no. 28 of 22.06.2017, according to which, "The national legislative-normative framework in the matter of waste until the date of adoption of the decision is outdated, outdated, ineffective and not adjusted to the provisions of legislation and community standards" [6].
In confirmation of the invalidity of The 2013-2027 waste management strategy of the Republic of Moldova, Law no. 22 of 11.03.2019 is also brought, by which art. 35 paragraph (2) of Law no. 209/2016 on waste was amended, namely: the text, "for each of the 8 areas of integrated waste management in compliance with the provisions of art. 11 paragraph (2) of this law and the Waste Management Strategy in the Republic of Moldova for the years 2013-2027, approved by the Government", was excluded and substituted with the words "in accordance with this Act" [7].
Thus, by excluding from Law no. 209/2016 the phrase - The waste management strategy in the Republic of Moldova for the years 2013–2027, approved by the Government, another normative instrument was introduced for the implementation of the regulatory field, which according to art. 1 paragraph (1), "... establishes the legal bases, the state policy and the necessary measures for the protection of the environment and the health of the population by preventing or reducing the adverse effects determined by the generation and management of waste and by reducing the general effects of the use of resources and increasing the efficiency of their use".
The multilateral instrument for the planned implementation of Law no. 209/2016 on waste represents National Waste Management Program which in the sense of art. 34 paragraph (2) "includes an analysis of the current situation of waste management on the territory of the country, the measures that must be taken to improve environmental conditions in the case of preparation for reuse, recycling, valorization and disposal of waste, as well as an assessment of how the program will help to put in application of the objectives and provisions of this law".
Despite the detailed provisions regarding the conditions of the National Program for waste management, until now, the Government of the Republic of Moldova, contrary to art. 68 paragraph (1) letter b) paragraph 3, not only did not approve it but also did not develop it .
Concomitant, Waste management strategy in the Republic of Moldova for the years 2013-2027, approved by Government Decision no. 248 of 10.04.2013, became obsolete because, despite the Government's competence provided by art. 8 letter b) of Law no. 209/2016, it was not revised/updated either once, the legal basis being a series of acts already repealed or even some of them fundamentally revised.
Conclusions:
1. The lapse of a normative act implies its ineffectiveness as a result of the occurrence of an event subsequent to its adoption.
With reference to Waste management strategy in the Republic of Moldova for the years 2013-2027, approved by Government Decision no. 248 of 10.04.2013, we note that it is obsolete, because, after its adoption, despite the fact that the national legal framework that was the basis of the Strategy was essentially revised (through repeal or systematic modification), this has not been adjusted to the updated law.
More than that, Decision no. 28 of 22.06.2017 of the Court of Accounts of the Republic of Moldova was no longer executed, according to which, "that in order to achieve the objectives and establish the priority directions in the field of waste management of any kind, the Government of the Republic of Moldova must urgently approve the normative acts to ensure the implementation of Law no. 209/2016 on waste, as well as intensify the monitoring of the enterprise of concrete measures by the authorities of department regarding the full implementation of the National Action Plan for the implementation of the Association Agreement Republic of Moldova - European Union in the areas of waste management".
2. The lack at national level of a Waste Management Program, and respectively, of preventing the generation of waste, produces a negative impact on the following aspects:
- developing the necessary measures for the protection of the environment and the health of the population by preventing or reducing the adverse effects determined by the generation and management of waste and by reducing the general effects of the use of resources and increasing the efficiency of their use,
- analysis of the current situation of waste management in the country,
- taking the necessary measures to improve environmental conditions in the case of preparation for reuse, recycling, valorization and disposal of waste,
– the assessment of how the program will help to implement the objectives and provisions of Law no. 209/2016 on waste,
– approval by local public administrations of local waste management programs and waste prevention programs,
– the development, approval and implementation of an integrated national and regional waste management system,
– issuing the environmental permit for waste management, in particular, for waste treatment activities.
According to art. 25 paragraph (4) letter c) and paragraph (5) point 3) letter a of Law no. 209/2016 on waste, "In order to obtain the environmental authorization for waste management, the framework content of the technical memorandum is to be presented, the summary of which specifies the proof that the treatment facility is in accordance with the National Waste Management Program and the regional waste management programs waste".
3. Even if, up to now, exceeding the legal terms, the Waste Management Program, and respectively, the prevention of waste generation, which would condition their imperative implementation at the local level, is not approved at the national level, the public administration authorities local authorities, according to art. 11 paragraph (1) of Law no. 209/2016, in order to implement the legislation in the field of waste management, within the limits of the financial resources approved for this purpose by the local council for the respective budget year, are obliged to carry out the following activities:
a) the creation of an efficient collection system, for the phased provision of the conditions for separate collection and transportation of waste and establishing its mode of operation, in accordance with the provisions of this law and other normative acts;
b) allocating the land necessary for the separate collection of waste, including for the collection of product waste subject to extended producer responsibility regulations, providing them with containers specific to the types of waste, as well as their functionality;
c) setting up special spaces for the storage of separately collected waste, appropriately sized, to ensure the protection of the environment and the health of the population;
d) the storage of municipal waste only in the specially arranged places in accordance with the urban planning documentation;
e) records of data and information regarding waste and the management of municipal waste collected from the population, from commercial units and institutions, on a contract basis, reporting these data annually, through municipal waste management operators, to the Ministry of Agriculture, Regional Development and Environment in accordance with the methodology for keeping records and transmitting information, approved by the Government.
As a solution in this case, it would be the development and approval at the local level of an Environmental Strategy, which mainly includes the following components:
- Legal regulation of waste management:
- Community regulatory framework;
- National regulatory framework.
- Best practices and technologies available on waste management.
- Technical-legal instructions for environmental managers within the local public administration body.
- The implementation plan of the local waste management strategy.
- Regulation on the selective collection of waste from the territory of the locality.
- List of the main documents for the organization of environmental protection activities drawn up at the level of subdivisions within the local public administration body.
- Identification and classification of historical and current waste.
- Institutional waste management strategy/framework for local operators specialized in this field.
4. The update The waste management strategy in the Republic of Moldova for the years 2013-2027, in accordance with the regulations of Law no. 209/2016 on waste and other amended laws, and respectively, the adoption of the National Program for waste management, by involving all the competent bodies invested with such direct and indirect powers and attributions, would give a significant impetus in the uniform and constant implementation of the necessary measures for the protection of the environment and the health of the population in order to prevent or reduce the adverse effects determined by the generation and management of waste, as well as in order to reduce the general effects of the use of resources and increase the efficiency of their use.
Bibliographical references:
- Published in the Official Gazette of the Republic of Moldova no. 16-17, art. 101 of 05.03.1998, repealed on 23.12.2017 by the entry into force of Law no. 209/2016;
- Published in the Official Gazette of the Republic of Moldova no. 82, art. 306 of 12.04.2013, in force from the moment of publication;
- Published in the Official Gazette of the Republic of Moldova no. 459-471, art. 916 from 23.12.2016, in force from 23.12.2016;
- Published in the Official Gazette of the Republic of Moldova no. 185-199, art. 442 of 18.07.2014;
- Published in the Official Gazette of the Republic of Moldova no. 7-17, art. 34 of 12.01.2018;
- Published in the Official Gazette of the Republic of Moldova no. 277-288, art. 13 of 04.08.2017, in force from the moment of publication;
- Published in the Official Gazette of the Republic of Moldova no. 101-107, art. 174 of 22.03.2019, in force from the moment of publication.
The full article is published in Issue 4(24) of 2019 of the "Waste Management" Magazine. To have access to the most current information in the field, you can perfect a subscription - https://old.e-circular.org/aboneaza-te/
Author:
Igor Seremet,
Lawyer, university lecturer at the Department of International and European Law of the Faculty of Law of USM, doctor of law